[ 喬鐵軍 ]——(2008-5-28) / 已閱55138次
淺析防衛過當
作者：北安市人民法院喬鐵軍 王素杰
摘 要
防衛過當是指防衛行為明顯超過必要限度造成重大損害的應當負刑事責任，但防衛過當是一種輕微的犯罪行為，它符合犯罪構成的一般原理，即犯罪構成的幾個要件主體、客體、主觀方面和客觀方面，防衛過當的主體是具有刑事責任能力的單個公民，客體是不法侵害人的人身權利，即不法侵害人依法受刑法保護的生命勸和健康權，主觀方面是防衛人對過當結果持放任疏忽大意過于自信的態度，客觀方面是防衛行為明顯超過了制止不法侵害行為所必須的限度，并且造成了重大損害。《刑法》第20條沒有對“明顯超過必要限度”作出界定，造成在法學界對如何界定防衛過當提出了許多觀點，隨著社會的進步，法學界又對防衛過當與正當防衛的關系提出了新的觀點，最后關于防衛過當的刑事責任，防衛過當構成犯罪，應當承擔刑事責任，但應減輕或者免除處罰，這也是鼓勵公民，勇于同不法侵害者作斗爭，對維護社會秩序具有積極的作用。
關鍵詞：防衛過當 正當防衛 防衛行為 刑法
Abstract
Defends has considered refers to the defense behavior obviously to surpass the essential limit to create the significant harm to have to take the legal responsibility, but defends has considered one kind of slight criminality, it conforms to the crime constitution general principle, namely the crime constitution several important documents main body, the object, the subjective aspect and the objective aspect, have defended when the main body is the single citizen which has the legal responsibility ability, the object illegally violates human's personal rights, namely illegally violates the human to receive the criminal law protection the life to urge legally with the healthy power, the subjective aspect is defends the human to when the result holds the laissez faire careless too self-confident manner, The objective aspect was defends the behavior obviously to surpass stopped the illegal violation behavior to have the limit, and has created the significant harm. "Criminal law" 20th obviously has not surpassed essential limit "to" to make the limits, how creates to limits in the legal science has defended when proposed many viewpoints, along with society's progress, the legal science to have defended when proposed with the justifiable defense relations the new viewpoint, finally about has defended works as the legal responsibility, defends has worked as the constitution crime, must undertake the legal responsibility, but should reduce or avoid the punishment, this also encourages the citizen, dares to wage the struggle with the illegal violation, to maintains the social order to have the positive function.
Key word: Defends has worked as Justifiable defense Defense behavior Criminal law
一、防衛過當的概念
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